Incentives and the Rule of Law: An Intervention in the Kramer/Simmonds Debate
American Journal of Jurisprudence, Vol. 51, p. 149, 2006
9 Pages Posted: 25 Jun 2008
Date Written: January 1, 2006
Is the rule of law morally neutral, in the modest sense that a wicked legal regime will have good prudential reasons to comply with the requirements of the rule of law? In a recent series of exchanges, Matthew Kramer and Nigel Simmonds have hotly debated this question. Kramer has claimed that departures from the rule of law in general tend to weaken incentives for compliance with the law, even if that law is wicked; consequently, even a wicked legal regime has good prudential reasons for complying with the rule of law. Simmonds argues that departures from the rule of law in general do not tend to weaken the citizen's incentive to comply with a wicked legal regime's objectives, so the regime has no particular reason to comply with the rule of law.
Kramer and Simmonds both recognize that although the effect of a state's respect for the rule of law on compliance with the law is ultimately an empirical question, it can be explored analytically. In this spirit, my intervention in their debate provides an analytical structure in which the empirical question could be posed. The question of the effect of legal rules on incentives for compliance cries out to be analyzed with a methodology that takes incentives seriously: economic analysis of law. The main purpose of this intervention is to provide a straightforward economic analysis of the scenarios posited by Kramer and Simmonds, with a view to assessing the likely answers to the underlying empirical question.
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